People ex rel. Arverne Bay Construction Co. v. Murdock

247 A.D. 889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1936
• Status: Published

Opinion

Order sustaining certiorari order, annulling the determination of the board of standards and appeals and granting application for a variance reversed on the law and the facts, with costs, certiorari proceeding dismissed, and the determination of the board reinstated and confirmed. In our opinion, it was not only within the discretion of the board but in fact incumbent upon it to refuse to grant a variance in a zone restricted to residences where the intention in creating the zone was manifestly to develop it along residential lines 1 y reason of its proximity to a boulevard and, further, where the conditions complained of, and particularly the presence of odors emanating from an incinerator and a creek used as an outlet for a sewer, are not peculiar to the site in question but affect a wide area, as shown by petitioner’s own witnesses. Under these circumstances there was no showing of unnecessary hardship or practical difficulty applicable peculiarly to the site in question, and relief, if any, should be achieved through appeal to the legislative authority which created the zone. (Matter of Levy v. Bd. of Standards & Appeals, 267 N. Y. 347.) Hagarty, Carswell, Johnston and Taylor, JJ., concur; Lazansky, P. J., not voting.